Technology + Law

This week a federal appeals court indicated that it may not retreat from its ruling last year that isolated human genes can be patented. The U.S. Court of Appeals for the Federal Circuit is revisiting its 2-1 ruling from last July that upheld Myriad Genetics Inc.’s patents on two genes that can tell whether a woman faces greater risk of developing breast cancer or ovarian cancer. Myriad’s patents allow the company to act as the sole provider of genetic screenings for the diseases.

The main issue in arguments before the Court of Appeals is whether isolated DNA is ineligible for patent protection as a product of nature. Myriad’s attorneys argue that the patent claim is not for something that is naturally occurring, but for a man-made creation that was the direct result of human ingenuity.

The ACLU disagreed, arguing that Myriad is trying to patent “products of nature” which cannot be patented. The group, along with others, claims that genetic patents stymie medical treatment and further scientific research. The Myriad case has split the medical community with some scientists saying they have been obstructed in their quest for new medicines and treatments because they fear coming up against demands for royalties or letters demanding they stop using patented inventions.

Several months ago the Supreme Court told the Federal Circuit to reconsider the Myriad case in light of a recent ruling that restricted rules on medical-testing patents. Oral arguments for that rehearing took place last week and the panel of judges indicated from their questioning that their views may not have changed.

For instance, Judge Alan Lourie again made comments indicating that he agreed with Myriad. He went on to say that the process of extracting and isolating a gene from the human body makes the gene chemically distinct from the DNA that exists naturally.

The other judge that sided with Myriad, Kimberly Moore, indicated that the U.S. Patent and Trademark Office has allowed patents on DNA sequences for decades and said doing anything to harm that industry risked potential large losses of money. Judge Moore did voice concerns over whether some of Myriad’s claimed inventions are really patentable, leaving open the door for a reversed decision.

A final ruling by the Court of Appeals is expected in the coming months and no matter how the case turns out most everyone expects that the loser will appeal to the Supreme Court.

The big patent infringement trial between Apple and Samsung kicked off earlier this week in a California court. With infringement claims pending against both huge tech companies, billions of dollars are at stake.

The trial can be quickly summarized by glancing at the first few lines in each company’s pre-trial brief. Apple says that Samsung is on trial because it made a deliberate decision to copy Apple’s incredibly popular iPhone and iPad devices. For its part, Samsung says that the suit exists because Apple has sought to unfairly stifle legitimate competition, thus limiting consumer choice in a highly profitable segment of the tech industry.

But before any of the meat of the case can be heard, both sides need to agree on where to sit in court, something that is proving far more complicated than you might imagine. Samsung has complained that its case against Apple is being referred to as Apple v. Samsung, which the company is suggesting could lead the jury to see it as the defendant in the patent suit. Samsung points out they are not just sitting on their hands, defending claims by Apple, oh no, they are busy lobbing bombs of their own and have filed a countersuit against Apple.

Given the countersuit, Samsung’s lawyers have asked for permission to switch seats with Apple’s lawyers when it’s their turn to present evidence. The point, they say, is to ensure that the jury is clear about who is suing whom. The filing by Samsung said:: “Both parties will at times be acting as plaintiffs and both as defendants, and it is therefore important that both parties are treated the same.”

Samsung suggested that both parties should be treated equally with regard to where they sit in the presence of the jury while presenting their cases. Samsung’s proposed musical chairs would, they claim, “mitigate any prejudice to Samsung that may result from Apple being in closer proximity to the jury throughout the trial.”

Apple, unsurprisingly, disagreed. The company said that Samsung’s request to sit nearer to the jury is both unnecessary and inconvenient. Apple went on to say that it is the plaintiff in the case, not Samsung, as it was the first to file a complaint. Apple requested that it be made clear that Samsung be referred to as a “defendant-counterclaimant.”

Judge Lucy Koh issued a final ruling on the issue, hoping to move things along, which denied Samsung’s request for musical chairs. However, Judge Koh did not leave Samsung empty-handed, she made sure that the sign outside the courtroom has been adjusted to read both Apple v. Samsung and Samsung v. Apple.

Women desperate to appear on the cutting edge of fashion have started heading down the street to their local craft store. Why? To buy little tubes of red paint to paint the soles of their shoes to imitate the iconic Louboutin heels on a budget.

In England, sales of red glossy paints with names like Duracoat’s ‘Flame’ and ‘Show Stopper’ have increased by a whopping 40% compared to the same period last year. One big craft supply store in the United Kingdom, Homebase, says the reason is clearly thanks to the recent trend of copying the nearly thousand-dollar shoes.

Christian Louboutin, the renowned designer, came up with the idea in 1992 after painting an assistant’s bright red nail polish on the bottom of a pair of shoes to add some energy to the otherwise dull heels. The move sparked a trend and flashing red soles was seen as a mark of person’s fashion pedigree. Women are now coming into stores with pages torn out of magazines to match the right color to the designer shoes. The staff at such stores is encountering questions about how to properly paint on leather or rubber surfaces.

One woman admitted to knocking off the shoes after wanting to wear them to a friend’s wedding but knowing she would not be able to afford the real deal. She decided to instead go out and buy a pair of $20 black pumps and a small tube of red paint to get the desired look. She painted them carefully and let them dry overnight and voila! Perfect faux Louboutins. “I received so many compliments at the wedding about my gorgeous shoes but I didn’t have the heart to confess they were DIY fakes. It was such a success I plan on doing the same for another pair of heels.”

These wannabe fashionistas with tastes greater than their pocketbooks do not appear to be concerned about the ongoing trademark battle taking place between the Louboutin and Yves St. Laurent SAS/France fashion houses. Louboutin has sued Yves St. Laurent over sales of red-soled shoes which it says violate Louboutin’s trademark.

The designer himself said that the suit is not over the color, but instead about “a precise red, used in a precise location.” He says that colors play a part in a brand’s identity and gives the examples of Ferrari red and Cadbury’s purple packaging. Some have said trademarking a color is ridiculous, but Louboutin has friends in high places with Tiffany filing its own brief arguing that a color – like the blue of its famous Tiffany boxes – can indeed be trademarked and should not be allowed to be copied.

One of Australia’s major television networks, the Australian Broadcast Corporation (ABC), has been using a very clever way of getting around the strict rules surrounding copyright control of content for the London Olympic Games.

Australia’s ABC network posted a video on YouTube showing the method they’ve employed to skirt the rules which say that only authorized broadcasters can show Olympic content on their airwaves. The clip demonstrates how employees reenacted the winning performance by famous Australian hurdler Sally Pearson with the help of stop motion photography and a set of Legos blocks. One of the ABC employees complained about the trick in the YouTube, saying how tired they are of running still images rather than videos of the actual event.

The International Olympic Committee adopted rules in August 2011, which said that any broadcast of the games’ content “is subject to and protected by full IOC copyright.”

Those companies which have not been granted the proper rights by the IOC to televise the games are limited to a maximum of six minutes of broadcast footage per day, a paltry number given the many events taking place each day. Additional restrictions are placed on those six minutes, with unauthorized networks limited to only two minutes of Olympic content in any one program which must only be news related and not entertainment driven. Any coverage of a specific event is limited to either one third of the length of that event or 30 seconds, whichever is less. The footage also cannot be aired until at least three hours after it is first broadcast on authorized networks.

The ABC simulation tends to even little details and includes Legos representing spectators along with a reenactment of the awards ceremony. The video ends with an acerbic line from one of the broadcasters, saying that ABC was looking forward to the following day’s events “which we will also not be able to show you.”

A recent performance in North Korea has captured the attention of U.S. State Department officials, though not for the usual reasons. This time the problem centers on the North Koreans use of Disney cartoon characters in a nationally televised concert event for the benefit of the reclusive country’s new leader, Kim Jong Un.

The realities of the current diplomatic situation meant hat the State Department is unable to raise the issue in the typical way. State Department spokesman Patrick Ventrell said that since Washington and North Korea do not have diplomatic relations the State Department would be unable to formally file a complaint. He instead settled for vaguely asking that the North Koreans follow international law and respect intellectual property rights.

North Korean state television stirred up the controversy after earlier this week broadcasting a show where performers were dressed as Minnie Mouse, Tigger, Winnie the Pooh and other characters dancing against a backdrop of footage from Disney movies. The Walt Disney Co. says it did not authorize the performance.

The move was seen as an unusual and possibly significant departure for the incredibly isolated nation. Experts believe that the decision is meant to project an image of youth and modernity for the new leader. North Korea’s young dictator, still only in his 20s, is taking unprecedented steps to breathe some fun into his repressive regime.

The unusual gala performance took place on Saturday and featured other emblems of American pop culture including a rendition of Walt Disney’s “It’s A Small World” and Frank Sinatra’s famous “My Way.” Also showcased at the concert was the “Rocky” theme song including showed clips of Sylvester Stallone boxing against his cold war, Communist rival Ivan Drago in “Rocky IV.” Appearing to glorify a popular American entertainment icon is an unusual move for Pyongyang, which regularly unleashes harsh tirades against the United States and its cultural icons.

Mr. Morgan received a J.D. degree from Saint John's University School of Law in 1998 and an M.S. in Computer Science from Farleigh Dickinson University in 1993. Before becoming a patent attorney, Mr. Morgan worked for several years as a patent examiner at the United States Patent & Trademark Office, where he examined patent applications in Class 705 (business methods). Mr. Morgan also has over a decade experience as a software engineer for a Fortune 100 company.